Wilcox: Trump Has Broad Legal Powers to Stop the Migrant Caravan

Central American migrants walking to the U.S. start their day departing Ciudad Hidalgo, Mexico, Sunday, Oct. 21, 2018. Despite Mexican efforts to stop them at the border, about 5,000 Central American migrants resumed their advance toward the U.S. border early Sunday in southern Mexico.
AP Photo/Moises Castillo)

No one should doubt President Trump’s resolve to stop the thousands-strong “caravan” of foreigners heading toward our southern border. What they expect to find is what previous caravans, and also unaccompanied minors and family units, have experienced.

After crossing the border illegally, they are captured by Border Patrol. They are detained – for no more than 20 days, in the case of unaccompanied minors and family units – then released into the interior of the United States with court dates many months or years in the future. Many never appear at these hearings, but go on living illegally in the United States – indefinitely.

This time, the immigration-law experts at my organization, the Immigration Reform Law Institute, believe that won’t happen. Abundant legal tools exist to enact President Trump’s resolve.

First off, remember the travel cases? The Supreme Court upheld the President’s authority, under § 212(f) of the Immigration and Nationality Act (“INA”), to suspend the entry of classes of aliens in the national interest. It’s that simple: the President can block any class of aliens he wants from entering the country. At most, he needs a rational basis for his decision.

Second, the President has a method to multiply manpower for the task, however much Congress may drag its feet on funding border security. As authorized by INA § 101(a)(10), the President could make a declaration of mass influx emergency, and pursuant to it immediately mobilize and train National Guard and other state and local personnel to act as immigration enforcement officers. State and local officers from all over the country could be part of this force augmentation (provided that their chief of police or department head signed off) and be stationed all along the border.

At the same time, using his broad, Supreme Court-approved § 212 authority, Trump could suspend entry over the southern border by all pedestrians except for U.S. citizens and Mexican border crossing card holders. This step would leave the separate commercial ports of entry for trucks and trains fully functional, and would not disrupt air or cruise ship travel. Of course, any vehicle used to transport an illegal alien into the United States would be seized.

What this targeted suspension would do is stop all caravan members, and other illegal aliens, who attempted to cross at those border checkpoints known as ports of entry. Since they would not be allowed to enter the country, they would not be eligible to claim asylum, and would not need to be detained.

As for those who do not attempt to enter through a port of entry, but instead cross the border illegally (almost always, this is done by paying thousands or tens of thousands to a cartel that smuggles both drugs and humans) the vast majority would be captured by Border Patrol. At this point, rather than detain them and then release them into the U.S., the administration could invoke a particular provision of the INA, 8 U.S.C. § 1225(b)(2)(C), and escort them out of the country swiftly, either in boats to their home country or by land deep into Mexico (if Mexico consents, and it will).

The aliens would be provided with a court date, many months or years in the future, to attend removal proceedings via video teleconferencing from their home country (or anywhere else outside of the United States they might choose). At these removal proceedings, they would have the option of claiming asylum, with the asylum hearings also to be conducted remotely via video teleconferencing. If the aliens’ home countries were deemed unsafe places for them to wait for their hearings, the U.S. could pay to house them in Mexico while they waited.

Very likely, of course, very few would even attend these video hearings; their purpose in coming and claiming asylum, or coming as unaccompanied minors or family units, after all, was not to get hearings at which they would have a low chance of being granted anything, but to gain entry to the U.S. well before any hearings, and stay here – one way or another – indefinitely. In any case, among those who did attend the video hearings abroad, experience shows that only a very few would be granted asylum. Those would be welcome in the United States.

In addition to the above, the President could issue an immediate proclamation under INA § 235(b)(1)(A)(iii)(II) extending the application of expedited removal procedures to all unadmitted aliens found within 200 miles of the border who are unable to show that they have entered the U.S. less than two years prior to apprehension. This step would help remove those caravan members who crossed illegally and managed to evade Border Patrol initially.

These steps, enacted concurrently, would rob the caravan of its effect, and dry up the incentive for any other caravans in the future. In addition, the practice of holding removal proceedings remotely could be generalized, and made mandatory for all unadmitted aliens who crossed the Mexican border. They all could be escorted home when apprehended and given a court date to appear by video as soon as our clogged system could accommodate them. Then time would be on the side of America, not illegal aliens.

Dale L. Wilcox is executive director and general counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

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